‘Birthright’ citizenship is intriguing, but what of the 12 million?

The question of birthright citizenship can be decided by the courts, but Congress must act on the status of 12 million illegal immigrants already here.

Published on November 5, 2018 10:36AM

Last changed on November 6, 2018 5:26PM

Marco Ugarte/Associated Press

Central American migrants begin their morning trek as part of a thousands-strong caravan hoping to reach the U.S. border, upon departure from Cordoba, Veracruz state, Mexico, Monday, Nov. 5, 2018.

President Trump created a firestorm — a phrase that could describe almost any of his actions — when he said last month that he would issue an executive order ending “birthright” citizenship for children born in the U.S. to parents who are illegal immigrants.

Like most Americans, we have taken it for granted that the Constitution, specifically the 14th Amendment, grants citizenship to anyone born in the United States. Though we’ve often heard rousing debate on whether that makes sense, we were oblivious until last week that there existed legitimate scholarly debate on whether the Constitution really means what we think it means.

We admit that critics of our interpretation make an intriguing argument.

Prior to the 14th Amendment’s ratification in 1868, the Constitution was silent on the question of citizenship. It did give Congress the power to legislate how non-citizens could be naturalized.

The amendment was passed and ratified in the wake of the Civil War. Slavery had been abolished by the 13th Amendment, but former slaves born in the United States and their children, born free or otherwise, were not guaranteed citizenship. Many states, even some Union “free” states, did not extend citizenship to blacks and other nonwhites.

The 14 Amendment says: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The key issue, the argument goes, is what is meant by “subject to the jurisdiction thereof.” It’s the kind of arcane nuance that can set jurisprudence on its ear.

For several decades “all persons” didn’t mean everyone. Most American Indians, for example, were not granted citizenship until a 1924 act of Congress because they were subject to tribal jurisdiction. The children born here of ambassadors are not citizens because their parents are not subject to U.S. law.

While the Supreme Court has ruled a child born here to immigrant parents in the country legally is a citizen, it has not specifically ruled on the question of birthright citizenship for the children of illegal immigrants.

We think children born in the United States are citizens of the United States, regardless of how their parents came to be here. It appears that opinion could be tested in court.

In the meantime, a bigger issue than the extent of birthright citizenship is the status of some 12 million illegal immigrants living here.

If we are to honor the rule of law, they cannot be allowed to stay in the shadows as they have for decades.

We continue to believe the answer is to offer illegal immigrants with otherwise clean criminal records temporary legal status and a path to permanent residency (but not citizenship) after 10 years if they meet strict requirements. We think the border should be secured. A viable guestworker program must be established, and employers must verify the work status of their employees.

Let them stay, or make them go. Only Congress can do this, and we think Congress should act.